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Category: Districting

Those fighting for a more inclusive and representative democracy would do well to look past the headlines about this term’s election law cases. A sobering trend seems to be unfolding: a good result splashes across the news—monster voter suppression law dies!—only to be replaced with a slow realization that the retreat may be less of a rout and more of a retrenchment.

So it may be with yesterday’s decision in Cooper v. Harris. The Twitter-sized takeaway is a mixed bag: Good short-term result and good clarification of the law on “race-as-a-proxy-for-politics”; bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.

The cause for caution is that this trade-off (more clarity on proxies, less clarity on partisanship) provides helpful tools for fighting yesterday’s proxy battles but may not help bring the larger partisan war to a close. The racially gerrymandered map at issue in yesterday’s case, for example, was replaced by the North Carolina legislature with a partisan gerrymandered map over a year ago. Unless the Court takes a strong stand on partisan gerrymandering next term, meaningful racial and political representation will remain at risk.

On March 1st, the Supreme Court issued its decision in Bethune-Hill.[1] While the Court’s decision to remand eleven of the twelve Virginia legislative districts wasn’t too surprising given Kennedy’s skeptical tone at oral argument, what was surprising was the virtually unanimous acclaim from the election law community.[2] Taking a page from Stephen Colbert, the only question seemed to be whether Bethune was a great decision or the greatest decision.

But this superficial consensus among the Justices should give pause to those who care about the survival of the Voting Rights Act (VRA). The sorting claim was developed by opponents of the VRA as a weapon to cut down districts designed to protect minority voting power. Only recently have voting rights lawyers begun to wield this weapon for their own purpose: striking down districts that pack minority voters based on the pretext of “complying” with the VRA. At the end of the day, the claim remains a weapon that can be used to advance or undermine the VRA, and Bethune has sharpened the knife for both sides.

Perhaps the most revealing sign of these crosscutting currents was Chief Justice Roberts’ presence in the majority. Roberts has long opposed Section 2’s results test and previously subscribed to the views of Justices Alito and Thomas regarding predominance, agreeing with Justice Scalia in LULAC that the intentional creation of a majority-minority district alone necessarily triggers strict scrutiny. So why the change? One explanation might be that the Chief Justice is building an illusion of consensus similar to that found in Northwest Austin ahead of a more sweeping and controversial decision yet to come.[3]

With more redistricting litigation ahead, the key to preserving the VRA will be handling the Bethune holding with care. Below I examine the good, the bad, and the ugly about Bethune and offer some thoughts on how it might be used to help enforce the VRA and fend off challenges to the VRA rather than inviting its demise.[4]

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3] [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

Yesterday, in Bethune-Hill and McCrory, counsel for the voter-plaintiffs asked the Supreme Court to reverse the Virginia decision and affirm the North Carolina decision. The state-defendants requested the opposite. Based on the Justices’ questions, the plaintiffs appear poised to get what they want. Yet, a full-out victory for either side should concern all of us—including the plaintiffs. That is because counsel for the voter-plaintiffs may have just purchased a few state house seats at the cost of the Voting Rights Act itself.

The arguments yesterday weremarkedbyconfusion, with the underlying tension between the commands of the Voting Rights Act and the Equal Protection Clause coming up on several occasions. Indeed, at one point, counsel for the state-defendants went so far as to raise the issue directly, prompting a quick response from Justice Kagan:

CLEMENT: [T]he Voting Rights Act makes the consideration of race absolutely necessary. . . . [U]nless you want to take the first steps towards declaring the Voting Rights Act unconstitutional, you don’t want to send the signal that when legislatures approach this in a way that I think is perfectly appropriate to what’s going on. . . .

JUSTICE KAGAN: You absolutely don’t, Mr. Clement.

Unfortunately, this problem cannot be so easily ignored when the Justices are forced to put pen to paper. They are the ones who must harmonize the racial sorting claim with the commands of the Voting Rights Act, and for the time being they seem to be at a loss. As Justice Breyer tellingly noted towards the end of the arguments:

JUSTICE BREYER: But, . . .what exactly is going on, in part, is a very tough matter. . . . There were many States that had many black citizens and had no black representation, and there was a [decision to] have majority-minority districts. And the problem is, how does the law permit the creation of that, and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering? And . . . no one, I think, has a good answer to that question. There is just slightly better, slightly worse.

But there is a good answer to that question, and there is a way forward. Unfortunately, it wasn’t offered by either side and requires rejecting both sets of arguments in part. For the reasons stated below, the Court should reject the plaintiffs’ view of predominance in Bethune-Hill, reject the states’ justifications for gerrymandering in McCrory, and affirm the results in both cases. The Voting Rights Act depends on it, the Constitution demands it, and our democracy requires it.

In a recent post, this blog examined the most significant racial and political gerrymandering cases unfolding in the year ahead. And, just in time for Thanksgiving, the United States District Court for the Western District of Wisconsin has issued an historic decision in one of those cases—Whitford v. Gill (3:15-cv-421)—and has struck down a state legislative redistricting plan as an unconstitutional partisan gerrymander for the first time ever. This is something we can all be thankful for, and special thanks are due to the Campaign Legal Center, which helped bring the case, and Nick Stephanopoulos and Eric McGhee, who set out the “efficiency gap” test put forth in the case.

Although the parties are yet to brief the district court on the proper remedy to be applied, an appeal to the Supreme Court is undoubtedly forthcoming. There, the case will await review along with Harris v. McCrory (16-166), which is likely to be heard or decided in the aftermath of the Court’s decision in McCrory v. Harris (15-1262). What are the odds that the decision is upheld? Let’s carve into the district court’s meaty opinion (sorry, give me one holiday pun), and find out.

The debate is also unfolding in the courts, with partisan and non-partisan groups engaging in a multi-front legal battle over racial and political gerrymandering. Although the war over congressional and state redistricting maps is likely to continue for many years to come (and will heat up in the aftermath of the 2020 census), the year ahead holds significant developments for legislators designing maps, litigators challenging maps, and the voters and candidates who must live with the consequences of the evolving law in this space. At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the “judicialization” of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide—all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.